Exploring the History of Charging and Sentencing Patterns in U.S. Clean Air Act Criminal Prosecutions
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Volume 61
Issue 2 Summer
Summer 2021
Exploring the History of Charging and Sentencing Patterns in U.S.
Clean Air Act Criminal Prosecutions
Joshua Ozymy
Texas A&M University- Corpus Christi
Melissa Jarrell Ozymy
Texas A&M University- Corpus Christi
Recommended Citation
Joshua Ozymy & Melissa Jarrell Ozymy, Exploring the History of Charging and Sentencing Patterns in U.S.
Clean Air Act Criminal Prosecutions, 61 Nat. Resources J. 229 (2021).
Available at: https://digitalrepository.unm.edu/nrj/vol61/iss2/6
This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been
accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more
information, please contact disc@unm.edu.Dr. Joshua Ozymy* and Dr. Melissa Jarrell Ozymy**
EXPLORING CHARGING AND SENTENCING
PATTERNS IN U.S. CLEAN AIR ACT CRIMINAL
PROSECUTIONS
ABSTRACT
The institutionalization of criminal investigation and prosecution
of companies and individuals that violate federal clean air laws
has been ongoing for almost four decades. Yet our empirical
understanding of how defendants are criminally prosecuted and
sanctioned under the U.S. Clean Air Act is mostly unknown. Our
goal is to analyze historical charging and sentencing patterns in
Clean Air Act criminal prosecutions and show the broader themes
that emerge over time. Through content analysis of all 2,588
criminal prosecutions resulting from U.S. EPA criminal
investigations, 1983-2019, we select all 377 prosecutions focusing
on Clean Air Act violations. Findings suggest that prosecutions
focus on six primary themes: asbestos related crimes, vehicle
emissions fraud, false reporting, renewable fuel credit fraud,
negligent operations, and trade in restricted refrigerants.
Defendants were cumulatively sentenced to roughly $3.6 billion in
fines, 16,000 months of probation, and 7,600 months of
incarceration.
I. POLICING AND PROSECUTING ENVIRONMENTAL CRIMES
The systematic federalization of environmental law began to take hold in
conjunction with the nation’s first Earth Day on April 22, 1970. By July 9, 1970 the
Environmental Protect Agency (“EPA”) was established. A great deal of significant
environmental legislation was passed soon after which laid the foundation for
modern federal environmental law in the United States. These include: the National
Environmental Policy Act (“NEPA”), the Clean Air Act (“CAA”), the Clean Water
Act (“CWA”), the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),
* Dr. Joshua Ozymy is Professor of Political Science and Director of the Honors Program and
Strategic Initiatives at Texas A&M University-Corpus Christi. His primary research agenda focuses on
criminal sanctioning and environmental law. He received his Ph.D. in Political Science from Texas Tech
University.
** Dr. Melissa Jarrell Ozymy is Professor of Criminal Justice and Dean of University College at
Texas A&M University-Corpus Christi. Her research interests include criminology, environmental
justice, and environmental victimization. She earned a B.A. in Anthropology from Eckard College and an
M.A. and Ph.D. in Criminology from the University of South Florida.
229230 NATURAL RESOURCES JOURNAL Vol. 61
the Endangered Species Act (“ESA”), the Safe Drinking Water Act (“SDWA”), the
Resource Conservation and Recovery Act (“RCRA”), and the Toxic Substance
Control Act (“TSCA”). 1
The CAA gives the EPA regulatory enforcement authority over air
emissions from stationary and mobile sources in the United States. One of the initial
paths to begin enforcing this authority was to set National Ambient Air Quality
Standards (“NAAQS”) for six criteria pollutants including sulfur oxides (SOX),
atmospheric particulate matter (PM10 and PM2.5), carbon monoxide (CO), ozone
(O3), nitrogen oxides (NOx), and lead (Pb). Setting such standards began a process
of regulating these harmful air emissions and requiring states to issue State
Implementation Plans (“SIPs”) to help achieve these standards.2 The CAA was
subsequently amended in 1977 and 1990 as NAAQS standards were not attained in
many parts of the U.S. and these amendments gave the agency extended authority to
require the maximum reduction in air emissions possible with Maximum Achievable
Control Technology (“MACT”) standards.3
The EPA has broad authority to regulate the permitting of emissions at a
variety of stationary sources, which allows the agency to craft New Source Review
(“NSR”) and Prevention of Significant Deterioration (“PSD”) standards requiring a
variety of industrial entities to install pollution controls when they build or modify
existing entities.4 Common examples include power plants, fertilizer plants, glass
manufacturing plants, cement manufacturing plants, and petroleum refineries. The
agency also uses the CAA to develop emissions standards for a variety of vehicles
and related parts. This authority is used to insure imported and domestic vehicles
meet emissions standards and to regulate the formulation and standards for
transportation fuel.5 Emissions from ocean going vessels are able to be regulated
through the CAA, as well as through related authority under The International
Convention for the Prevention of Pollution from Ships (“MARPOL”) and the Act to
Prevent Pollution from Ships (“APPS”).6
The EPA must engage in compliance monitoring to ensure regulated entities
obey the law and investigations and enforcement actions are required when
individuals and companies refuse to comply with regulations. By the late 1970s, the
EPA and DOJ realized that enhanced enforcement tools were necessary to ensure
compliance with federal environmental laws, such as the CAA. This need led to the
creation of the EPA’s Office of Environmental Enforcement in 1981—now the
Office of Criminal Enforcement (“OCE”) and the Department of Justice’s (“DOJ”)
1. See 42 U.S.C. §§ 4321–4370 (2018); 42 U.S.C. §§ 7401–7671 (2018); 33 U.S.C. §§ 1251–1288
(2018); 7 U.S.C. § 136 (2018); 16 U.S.C. §§ 1531–1544 (2018); 42 U.S.C. § 300 (2018); 42 U.S.C. §§
6901–6992 (2018); 42 U.S.C. §§ 2601–2697 (2018).
2. Cf. 40 C.F.R. § 51 (2020).
3. Summary of the Clean Air Act, U.S. ENVTL. PROTECTION AGENCY (last updated Aug. 6, 2020),
https://www.epa.gov/laws-regulations/summary-clean-air-act.
4. New Source Review (NSR) Permitting, U.S. ENVTL. PROTECTION AGENCY (last updated Feb. 8,
2019), https://www.epa.gov/nsr/prevention-significant-deterioration-basic-information.
5. Regulations for Emissions from Vehicles and Engines, U.S. ENVTL. PROTECTION AGENCY (last
updated Dec. 18, 2020), https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-
onroad-vehicles-and-engines.
6. See Air Enforcement, U.S. ENVTL. PROTECTION AGENCY (last updated Dec. 4, 2020),
https://www.epa.gov/enforcement/air-enforcement.Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 231
Environmental Crimes Section (“ECS”) in 1982.7 With the development of these
offices the EPA was able to begin institutionalizing a process for the consistent use
of criminal enforcement tools to investigate and punish chronic and serious
infractions of federal environmental statutes and related criminal acts.8
The development of criminal provisions in federal environmental can be
traced to the Rivers and Harbors and Lacey Acts, which made it illegal to obstruct,
alter, or discharge into the navigable waters of the United States and made illegal the
unpermitted interstate trade in wildlife.9 It was not until the Hazardous and Solid
Waste Amendments to RCRA in 1984 that felony provisions were added to federal
environmental statutes.10 Prompted by an era where Congress emphasized
sentencing reform and stiffer penalties for all manner of federal crimes, felony
provisions were added to the CWA in 1987, the CAA in 1990, and today felony
provisions are comment in major federal environmental statutes.11
7. See Earl E. Devaney, The Evolution of Environmental Crimes Enforcement at the United States
Environmental Protection Agency, 1 THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL
ENFORCEMENT 457, 457 (1994),
https://inece.org/assets/Publications/57a8be53a90ea_SpecialTopicTheEvolutionOfEnvironmentalCrime
s_Full.pdf; Creation of ECS, U.S. DEPT. OF JUSTICE (last updated May 5, 2015),
https://www.justice.gov/enrd/creation-ecs. See generally John F. Cooley, Multi-Jurisdictional and
Successive Prosecution of Environmental Crimes: The Case for a Consistent Approach, 96 J. CRIM L. &
CRIMINOLOGY, 435, 437 (2006).
8. See History, U.S. DEP’T OF JUST. ENVTL. AND NAT. RES. DIVISION (last updated June 19, 2019)
https://www.justice.gov/enrd/history (describing the DOJ’S Environmental and Natural Resources
Division (ENRD), which houses ECS, finds its historical roots in the founding of the Public Lands
Division in 1909); see also Historical Development of Environmental Criminal Law, U.S. DEP’T OF JUST.
ENVTL. CRIMES SECTION (last updated May 13, 2015), https://www.justice.gov/enrd/about-
division/historical-development-environmental-criminal-law; JOHN PETER SUAREZ, MANAGEMENT
REVIEW OF THE OFFICE OF CRIMINAL ENFORCEMENT, FORENSICS AND TRAINING 7 (discussing the culture
of CID and its law enforcement orientation); U.S. Environmental Protection Agency Criminal
Enforcement Program: America’s Environmental Crime Fighters, U.S. ENVTL. PROTECTION AGENCY
(last visited Apr. 12, 2021), https://www.epa.gov/sites/production/files/documents/oceftbrochure.pdf;
Environmental Crimes Section, U.S. DEP’T OF JUST. ENVTL. CRIMES SECTION (last updated Jan. 21,
2021), https://www.justice.gov/enrd/environmental-crimes-section; EPA CID Agent Count, PUB.
EMPLOYEES FOR ENVTL. RESPONSIBILITY (PEER) (last visited Apr. 12, 2021), https://www.peer.org/wp-
content/uploads/2019/11/11_21_19-Federal_Pollution_EPA_CID_Agent_Count.pdf (CID currently
employs some 145 criminal investigators, also known as special agents, to police environmental crimes
throughout the United States. The Pollution Prosecution Act of 1990 (P.L. 101-593) created a statutory
minimum at 200 investigative staff for EPA-CID. Meeting this threshold has not occurred for years. ECS
employs about 43 staff attorneys and a dozen support staff to prosecute environmental crimes.).
9. 33 U.S.C. § 403 (1947); 16 U.S.C. § 3371 (2008); see also Neil J. Barker, Sections 9 and 10 of
the Rivers and Harbours Act of 1899: Potent Tool for Environmental Protection, 6 ECOLOGY L. Q. 109,
109–15 (1976).
10. David T. Barton, Corporate Officer Liability Under RCRA: Stringent but not Strict, 1991 BYU
L. Rev. 1547, 1548–50 (1991) (Prior to these amendments it was difficult to hold corporate officers
accountable for hazardous waste violations and the changes opened up a series of avenues to help
prosecute corporations and their officials for environmental crimes.); see also Richard J. Lazarus,
Assimilating Environmental Protection into Legal Rules and the Problem with Environmental Crime, 27
LOY. L.A. L. REV. 867, 86770 (1994) (The question of how prosecutors would use their discretion within
these expanded statutes caused a series of arguments back and forth regarding the legality and precedent
of such action.).
11. Judson W. Starr, Turbulent Times at Justice and EPA: The Origins of Environmental232 NATURAL RESOURCES JOURNAL Vol. 61
Seeking civil remedies such as civil administrative actions or civil judicial
actions can be handled internally and result in a range of punishments including civil
penalties, injunctive relief, settlements, or Administrative Orders of Consent
(“AOCs”), required mitigation plans, restitution, or Supplemental Environmental
Projects (“SEPs”) that require the violator to perform specific action.12 Due to the
cost of criminal prosecution and nature of most violations, the EPA greatly
emphasizes administrative penalties or civil remedies over criminal enforcement.13
The agency tends to pursue criminal prosecution for a select set of more serious or
chronic offenders.14 Civil remedies attempt to bring a violator into compliance with
the law, whereas criminal enforcement focuses on punishing and deterring
environmental crimes.15 Investigations tend to involve cooperation and collaboration
among prosecutors, law enforcement officials, regulators, laboratories, and
legislators.16 The EPA must also rely on U.S. Attorneys or the Department of Justice
to charge and prosecute offenders, which requires an additional level of
cooperation.17
There is extensive research on how the EPA makes rules and regulations
under the CAA and enforces them through civil action. However, there is limited
understanding of how the agency uses its criminal enforcement tools to ensure
Criminal Prosecutions and the Work that Remain, 59 GEO. WASH. L. REV. 900, 900–02 (1991) (Congress
first complained that CID and ECS were not doing enough to prosecute criminals and then the narrative
changes in the 1990s that they were overreaching. Federal environmental law enforcement was
institutionalized in the 1980s, but the idea of holding corporations and other powerful entities responsible
for environmental crimes and seeking significant punishments failed to become a consistent bipartisan
issue in Congress.); see also Theodora Galactos The United States Department of Justice Environmental
Crimes Section: A Case Study of Inter- and Intrabranch Conflict over Congressional Oversight and the
Exercise of Prosecutorial Discretion, 64 FORDHAM L. REV. 587, 590 (1995).
12. See Basic Information on Enforcement, U.S. ENVTL. PROTECTION AGENCY (last updated Jan. 13,
2021), https://www.epa.gov/enforcement/basic-information-enforcement [hereinafter Basic Information
on Enforcement].
13. See David M. Uhlmann, Environmental Crime Comes of Age: The Evolution of Criminal
Enforcement in the Environmental Regulatory Scheme, 4 UTAH L. REV. 1223 (2009); see also Kathleen
F. Brickey, Charging Practices in Hazardous Waste Crime Prosecutions, 62 OHIO ST. L. J. 1077 (2001);
Evan J. Ringquist and Craig E. Emmert, Judicial Policymaking in Published and Unpublished Decisions:
The Case of Environmental Civil Litigation, 52 POL. RES. Q. 7, 12-13 (1999).
14. See Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of
Environmental and Criminal Law Theory, 71 TUL. L. REV. 487, 494–95 (1996); Melissa L. Jarrell &
Joshua Ozymy, Few and Far Between: Understanding the Role of the Victim in Federal Environmental
Crime Cases, 61 CRIME, L. & SOC. 563, 569 (2014); see also Michael M. O’Hear, Sentencing the Green-
Collar Offender: Punishment, Culpability, and Environmental Crime, 95 J. OF CRIM. L. & CRIMINOLOGY
133 (2004).
15. See Basic Information on Enforcement, supra note 12; see also Michael J. Lynch, The
Sentencing/Punishment of Federal Environmental/Green Offenders, 2000-2013, 38 DEVIANT BEHAVIOR
991, 991–95 (2017).
16. THEODORE M. HAMMETT & JOEL EPSTEIN, LOCAL PROSECUTION OF ENVIRONMENTAL CRIME
(1993); see also Joel A. Mintz, Treading Water: A Preliminary Assessment of EPA Enforcement During
the Bush II Administration, 34 ENVTL L. REP., 10912 (2004).
17. See Joel A. Mintz, Some Thoughts on the Interdisciplinary Aspects of Environmental
Enforcement, 36 ENVTL L. REP., 10495 (2006) (for a discussion of the interdisciplinary nature of
environmental law enforcement).Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 233
compliance with the CAA.18 In this study, this gap of information is addressed by
exploring charging and sentencing patterns in federal CAA prosecutions. By
analyzing the EPA’s prosecution case summaries from 1983-2019, the veritable
history and chart the evolution of how the CAA has been legally interpreted and used
as a tool to prosecute federal environmental crimes and enforce federal clean air
statutes is explored.
II. DATA
Data was collected from the EPA Summary of Criminal Prosecutions
database.19 EPA databases, organized by fiscal year, were searched starting with the
first case available in 1983 through the last case as of January 1, 2020. The following
categories of data were coded during content analysis of these case summaries:
summary information on the nature of the crime, year, docket number, state, major
environmental and non-environmental charging statutes used, number of defendants,
whether the defendants were individuals and/or companies, penalties assessed, and
whether each case involved a death and/or injury to humans or animals that was
clearly discussed in the case narratives. If the case was prosecuted under the CAA,
it was selected for the analysis. A total of 2,588 cases were analyzed, which yielded
377 complete CAA cases for analysis. As the OCE and ECS were founded in the
years prior to 1983, this represents a fairly full accounting of CAA prosecutions.
This approach is limited to the extent that only EPA cases entered into the
database can be analyzed. If the EPA failed to include a case, it was not coded and
included in the analysis below. Additionally, other agencies can undertake
environmental criminal prosecution as well. The roles of different agents, such as the
prosecutor or investigators, in the cases is unknown. This information is limited to
the prosecution summaries. The U.S. Government’s fiscal year runs October-
September, therefore a full analysis of Fiscal Year 2019 was not complete as the
authors completed the analysis on the first day of calendar year 2020. One can use
various search criteria to explore the database, including state, statute, year, etc.
However, searching by fiscal year going case by case was the most accurate method
to catalog all of the appropriate CAA cases (other methods such as searching by
statute did not consistently capture all of the cases.)
Coding protocols were developed by examining cases through fiscal year
2005. The protocol was piloted for four weeks with two coders until 90% accuracy
on inter-coder reliability was achieved. Two individuals coded cases independently
with one of the authors reviewing for discrepancies, which were then discussed
among the group to find consensus. The most common point of disagreement came
18. Wayne B. Gray and Jay P. Shimshack, The Effectiveness of Environmental Monitoring and
Enforcement: A Review of the Empirical Evidence, 5 REV. OF ENVTL. ECON. & POL’Y 1, 1 (2011); c.f.
Michael J. Lynch, The Sentencing/Punishment of Federal Environmental/Green Criminal Offenders,
2000-2013, 38 DEVIANT BEHAV. 991, 1002-1003 (2017); Joshua Ozymy and Melissa L. Jarrell, Why do
Regulatory Agencies Punish? The Impact of Political Principals, Agency Culture, and Transaction Costs
in Predicting Environmental Criminal Prosecution Outcomes in the United States, 33 REV. OF POL’Y RES.
72 (2016).
19. See Summary of Criminal Prosecutions Database, U.S. ENVTL. PROTECTION AGENCY (last
updated Apr. 9, 2021), https://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm.234 NATURAL RESOURCES JOURNAL Vol. 61
with complex sentences handed down in cases with multiple defendants. The level
of agreement for coding was approximately 95% by dividing the agreed upon items
by total items coded in the dataset.20
III. RESULTS
Figure 1 provides an overview of the number of total CAA prosecutions
adjudicated by EPA fiscal year, 1983-2019. In the 1980s, we do not see a prosecution
adjudicated until 1986, with 11 total prosecutions during the decade. Total
prosecutions grow with time through the 1990s (67), 2000-09 (116), and 2010-19
(183). Prosecutions likely grew with the institutionalization and professionalization
of the criminal enforcement process. As the precursor to the OCE was only formed
a year prior to the data, it takes time to cooperate with federal prosecutors and other
state, local, and federal law enforcement agencies on investigations, prosecutions,
and to properly utilize key federal statutes to successfully prosecute environmental
criminals and this is likely reflected in the data.
Figure 1. Total U.S. Clean Air Act Criminal Prosecutions Adjudicated by
EPA Fiscal Year, 1983-2019.
Source: EPA Summary of Criminal Prosecutions Database
Figure 2 displays the total prosecutions by state graphically. These CAA
prosecutions range from 0-55 with Texas, Florida, and New York’s dark shading
representing a greater number of prosecutions and South Dakota and Wyoming
fewer prosecutions. Prosecutors also pursued cases in Washington D.C. and Puerto
Rico.
20. See OLE R. HOLSTI, CONTENT ANALYSIS FOR THE SOCIAL SCIENCES AND HUMANITIES 140
(1969).Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 235
Figure 2. Total U.S. Clean Air Act Criminal Prosecutions Adjudicated by
U.S. State, 1983-2019.
Source: EPA Summary of Criminal Prosecutions Database
Table 1 shows the distribution of prosecutions by U.S. State, totaling all
prosecutions by state in the first column. In some cases, other federal environmental
statutes are used to charge and prosecute defendants. These are included in the
adjacent column for CAA plus CWA, then CAA plus TSCA, RCRA, CERCLA, and
FIFRA. A handful of states were found where no prosecutions take place over the
last 37 years including Arkansas, Mississippi, New Hampshire, South Dakota, and
Wyoming. The average number of prosecutions across the states is about 7.5
annually during this period. A few states dominate the total number of prosecutions,
including California (18), Florida (22), Michigan (21), Ohio (25), Pennsylvania (27),
and Texas (27). A total of 55 cases were prosecuted in New York, which represents
approximately 15% of cases occurring in the states. Two prosecutions in Washington
D.C. and Puerto Rico respectively were found. In 14 cases, defendants were
prosecuted under CAA + CERCLA, and in 8 cases CAA + CWA or TSCA. In 4
cases CAA + RCRA was used.
Table 1. Total U.S. Clean Air Act Criminal Prosecutions by U.S. State and
Territory Plus Additional Charging Statutes, 1983-2019.
+ + + +
State CAA + CWA TSCA RCRA CERCLA FIFRA
AK 5
AL 2 1
AR 0
AZ 2
CA 18 1
CO 8 1
CT 10236 NATURAL RESOURCES JOURNAL Vol. 61 DE 1 1 FL 22 GA 5 HI 2 IA 3 ID 5 IL 9 1 IN 8 KS 2 KY 4 1 1 LA 8 MA 1 MD 5 1 1 ME 1 MI 21 MN 3 1 MO 18 1 MS 0 MT 2 1 NC 9 ND 1 NE 2 NH 0 NJ 3 1 NM 1 NV 11 NY 55 1 2 2 5 OH 25 2 OK 2 OR 3 PA 27 1 3 RI 3 1 1 1 SC 4 SD 0 TN 3 TX 27
Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 237
UT 5
VA 7
VT 1
WA 8 1
WI 4
WV 6
WY 0
DC 2
PR 2 1
* 1 1
Total 377 8 8 4 14 1
Source: EPA Summary of Criminal Prosecutions Database *Note: In one
prosecution the U.S. state where the case took place cannot be determined.
A case example of CAA + CWA was the 2002 prosecution of principal
defendant John Daniel Bell in Alabama. Bell along with co-defendant Koppers
Industries were charged for violations of the CAA and CWA. In the case, Bell, the
environmental manager at the Woodward Coke Plant in Dolomite, Alabama,
instructed employees to tamper with the plant’s monitoring methods. Bell was
sentenced to 36 months of probation, ordered to pay a $2,000 fine and a $100 special
assessment fee. Koppers was sentenced to 36 months of probation, a $2.1 million
fine, restitution of $900,000, and a special assessment fee of $1,200.21
A CAA + CERLA prosecution example was the 2000 prosecution of
Nicholas LaPenta and NPLA Corporation in Syracuse, New York. LaPenta was the
owner of Antonio’s restaurant and illegally removed asbestos, did not report the
removal, and gave false statements to investigators concerning the removal. He was
charged under CERCLA with failure of a person in charge of a facility to notify
authorities of the removal of a hazardous substance, one knowing violation of the
CAA for the release of the material, and false statements. LaPenta paid a $5,000 fine
and the company was fined $20,000.22 A CAA + TSCA example was another illegal
asbestos removal case against Ambers Scott Rind. Rind illegally removed asbestos
from a facility in Martinsburg, West Virginia and disposed of it on a nearby farm.
Rind was prosecuted for the illegal removal and disposal of the asbestos under the
CAA and TSCA, as well as for making false statements. The defendant was
sentenced to 36 months of probation, a $5,000 fine and ordered to pay $25 in fees.23
Gerald Cohen was sentenced in New York in 2010 under the CAA + RCRA
for illegal storage of hazardous waste (RCRA) and illegal operation of diesel engines
21. United States v. Koppers, CR-02-S-0300-S (N.D. Alabama 2003) (Bell falsified DMR’s and
directed employees to tamper with the monitoring methods used at the plant).
22. United States v. LaPenta, 00-CR-67 (N.D. New York 2000) (LaPenta removed asbestos from a
food storage location at the restaurant without inspecting the facility for the presence of asbestos).
23. United States v. Rind, CR:04-JUN-2002 (N.D. West Virginia 2003).238 NATURAL RESOURCES JOURNAL Vol. 61
without a permit (CAA) at his company Lawrence Aviation (co-defendant in case).
Cohen was sentenced to 12 months and a day incarceration, 36 months of probation,
and to pay restitution in the amount of $105,816.24
A CAA + FIFRA case involved David Grummer, who was prosecuted and
sentenced in 2010 in California.25 Grummer was a manager for an environmental
services company that contracted with the city of San Diego to manage household
hazardous waste collection facilities. He diverted chemicals and pesticides to sell
online for personal profit via FedEx and did not properly label the packages as
hazardous materials. In executing a search warrant for violation of the environmental
regulations, federal officials found child pornography on Grummer’s computer. He
was charged with the unlawful use of a pesticide (FIFRA), sale of a Class I ozone
depleting substance to an uncertified individual (CAA), a HazMat violation for
transporting hazardous waste via FedEx without a proper declaration, and receipt
and possession of child pornography. On February 23, 2009 Grummer was sentenced
to 18 months incarceration, 36 months of probation, a $3,000 fine, and $92,410 in
restitution on the environmental charges alone.26
Table 2 examines common criminal charges found in the prosecutions,
many of which were Title 18 violations. Some were investigated by the EPA, but
ultimately defendants were prosecuted for state-level crimes.27 In 78 cases, or 21%
of the data, defendants were charged with false statements. A common case example
is that of defendant Terry Conklin prosecuted in New York and sentenced in 1999.
Conklin illegally removed asbestos and buried it before a new concrete floor was
poured over the dumpsite. He was charged with making false statements in
conjunction with the crime, CAA violations, and CERCLA violations for the illegal
disposal. He was sentenced to 10 months incarceration and a $12,000 fine.28
Another example of a Title 18 violation being combined with CAA charges
stems from the case settled in 1995 in Ohio against the Wastebestos Construction
Company and related defendants. As the company name suggests, it was in the
business of asbestos abatement and removed asbestos from a City of Cleveland Parks
and Recreation Facility in July 1992. They illegally dumped 300 bags of asbestos in
a ravine and the defendants were charged with obstruction and false statements for
concealing the crime and a CAA violation for the illegal disposal. The associated
defendants, Frank Ljubec and Rose Dumas, were collectively sentenced to 48
24. United States v. Cohen, No.2:06-CR-0596 (E.D. N.Y. Sept. 6, 2006) (Cohen was sentenced to 12
months and a day incarceration, 36 months of probation, and was ordered to pay $105,816 to the EPA).
25. United States v. Grummer, No. 08CR4402-DMS (S.D. Cal. Apr. 24, 2008) (Grummer plead
guilty to one misdemeanor FIFRA count, one felony CAA count, and one felony count of violating the
Hazardous Materials Transportation statute. Grummer was sentenced in 2010).
26. Id. (Grummer was sentenced to 18 months incarceration, 36 months of probation, required to pay
a $3,000 fine, and required to pay $92,410 in restitution on the environmental charges).
27. 18 U.S.C. § 6005 (2021).
28. United States v. Conklin, No. CR 98 CR-428 (W.D. N.Y. Oct. 1, 1998) (Conklin was charged for
illegally removing asbestos from a location in New York and burning the asbestos on the site. He was also
with making false statements in conjunction with the crime and was sentenced to 10 months incarceration
and a $12,000 fine).Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 239
months of probation, six months home detention, and to pay special assessment fees
totaling $100.29
Table 2. Common Criminal Charges in U.S. Clean Air Act Criminal
Prosecutions, 1983-2019.
Statute Number of Cases Percentage of Total
False Statements* 78 21%
Conspiracy 69 18%
Fraud** 31 8%
Smuggling 10 3%
Obstruction 8 2%
Bribery 3 1%
Source: EPA Summary of Criminal Prosecutions Database. Note: *In three case
summaries defendants are guilty of false information, making false declarations,
and falsifying records. We count these in the false statements category; otherwise
there would be 75 total cases. **Includes multiple types of fraud including wire
fraud, Social Security Fraud, and Mail Fraud. Percentages are rounded. Defendants
in a case may be charged with multiple violations.
In 18% of the cases in the dataset, or 69 total cases, we found the defendants
charged with conspiracy. An example case is that against Louisiana Pacific
Corporation, Dana Francis Dulohery, and Robert Russell Mann, Jr, which settled in
Colorado. In 1991-92, the defendants tampered with air emissions controls and
falsified emissions reports to conceal that the company had exceeded its discharge
permits. The defendants were charged with conspiracy, fraud, wire fraud, false
statements, and the CAA violation for tampering with emission controls, submitting
false reports, and conspiring to conceal the crime. The company was sentenced to 60
months of probation, $235,000 in restitution, $500,000 in community project fines
and $36.5 million in other fines so that total fines equaled $37 million. Mann was
sentenced to six months incarceration, 36 months of probation and fined $10,000.
Dulohery was sentenced to 10 months incarceration, 36 months of probation and
fined $15,000.30
In 8% of cases defendants were charged with fraud. In a case settled in
Florida in 1995, Daniel J. Fern was prosecuted for a “rip and run” asbestos removal,
where he removed asbestos containing material from a 196-room hotel without
properly wetting it, providing proper equipment for workers, or providing air
monitoring. Mr. Fern was prosecuted for fraud, witness tampering (Title 18
29. United States v. Wastebestos Construction Co., No. CR-92-V-3-4 (N.D. Ohio May 18, 1993)
(Wastebestos performed an asbestos abatement project and disposed 300 bags of asbestos by tossing them
into a ravine. Dumas was sentenced to 12 months of probation and a special assessment of $50 and Ljubec
was sentenced to six months home detention, 36 months of probation, and a special assessment fee of
$50).
30. United States v. Louisiana Pac. Corp., No. 95-CR-215 (D. Colo. June 14, 1995) (Defendants
conspired to tamper with air emission control equipment and conspired to falsify emission report data to
state and federal regulators. Mann was sentenced to six months incarceration, 36 months of probation and
fined $10,000 and Dulohery was sentenced to 10 months incarceration, 36 months of probation and fined
$15,000).240 NATURAL RESOURCES JOURNAL Vol. 61
violation), and the illegal removal and disposal under the CAA. He was sentenced to
138 months incarceration and to pay a $400 special assessment fee.31
In 3% of cases, defendants were charged with smuggling.32 An example
case settled in 2003 in Michigan involved the principal defendants, Michael James
Dolmetsch, Max Wagerman III, and Ronald Simon.33 In the case, the defendants
31. United States v. Fern, No. CN:94-233-CR-GRAHAM (S.D. Fla. May 27, 1994) (The owner of
Air Environmental Research and the owner of the hotel conspired to defraud an insurance company by
making false claims of widespread asbestos contamination based on falsified air samples. Defendant was
sentenced to 138 months incarceration and to pay a $400 special assessment fee).
32. United States v. Alston, No. 85-236 (S.D. Tex. Oct. 4, 1985) (Defendant, an automobile broker
and associates, deceived the EPA into granting them a “five year old exemption” for nonconforming
vehicles. Alston and Williams were both charged with 10 counts of smuggling, and Laurus was later
charged with two counts of smuggling); United States v. Pennell, No. 95-0365-CR-RYSKAMP (S.D. Fla.
May 24, 1995) (Pennell and Alfano were both charged with one count of smuggling goods into the United
States. Pennell was sentenced to 12 months of incarceration, 36 months of probation, and forced to pay
$3.4 million in restitution. Alfano was sentenced to 14 months of incarceration, 36 months probation,
fined $3.4 million, and forced to pay $23,035 in fines); United States v. Burrell, No. 95-0757-CR-
FERGUSON (S.D. Fla. Sept. 26, 1995) (Burrell and Raja were each indicted on 20 charges, which
included illegally smuggling Freon into the United States. Burell was sentenced to 12 months of
incarceration, 24 months of probation, and fined $75,000. Raja was sentenced 12 months of incarceration,
36 months of probation, 300 hours of community service, and fined $100,000); United States v.
Refrigeration USA, No. CR:96-0267-CR-MORENO (S.D. Fla. Mar. 26, 1996). The company was charged
with smuggling for importing more than 4,000 tons of Freon, an ozone depleting refrigerant gas. The
company was fined $37,372,826 and sentenced to 60 months of probation); United States v. Pacheco-
Pina, No. L-97-138 (S.D. Tex. Apr. 8, 1997) (Pacheco-Pina smuggled five 30 pound canisters of Freon
into the United States. Pacheco-Pina was charged with smuggling, and was sentenced to three months of
incarceration and 36 months of probation); United States v. Reyes, No. 96-236 (S.D. Tex. Nov. 13, 1996)
(Reyes was charged with illegally importing freon and sentenced to six months of incarceration); United
States v. Lizcano-Hernandez, No. M-97-203 (S.D. Tex. Aug. 8, 1997) (Lizcano-Hernandez was charged
with two counts of smuggling after he attempted to smuggle 360 pounds of Freon into the United States.
Lizcano-Hernandez was sentenced to four months of incarceration and 24 months of supervised
probation); United States v. Medina Forwarding Co., No. 98-6100 (S.D. Tex. Feb. 23, 1998) (Medina
Forwarding Co. was charged on four counts, (1) conspiracy; (2 smuggling; (3) entry of goods by false
statements; and (4) violating the CAA, after transporting 1200 thirty-pound cylinders of CFC-12,
refrigerant gas, into Long Island, New York from Russia in 1995. After pleading guilty to all charges, the
company was sentenced to a $16,000 federal fine); United States v. Lopez, No. 99-457-11 (S.D. Tex.
Nov. 23, 1999) (Lopez was charged with violating 18 U.S.C. 545 - smuggling into the United States, after
U.S. Customs Inspectors discovered 60 twelve-ounce cans of Mexican-made CFC-12 hidden in the spare
tire well of the trunk of Lopez’s car as he entered the United States from Matamoros, Mexico. After being
convicted at trial by a jury, Lopez was sentenced to 24 months’ probation and ordered to pay a special
assessment fee of $100 and fined $1,000); United States v. Dolmetsch, No. 99-80061 (E.D. Mich. Jun.
26, 2002) (Dolmetsch was charged with 8 counts including conspiracy to violate the CAA, false
statements and illegal monetary transactions after smuggling virgin CFC-12 into the United States from
Canada. After pleading guilty to all charges, Dolmetsch was sentenced to 24 months’ probation, ordered
to perform 800 hours of community service, pay a $100 special assessment fee and a $5,000 federal fine).
33. Id; United States v. Wagerman, No. 99-80196, 02-CR-80140 (E.D. Mich. Mar. 17, 1999)
(Wagerman was charged with one count of conspiracy, a violation of 18 U.S.C. 371 and one count of
smuggling, a violation of 18 U.S.C. 545, after smuggling virgin CFC-12 into the United States from
Canada. After pleading guilty to all charges, Wagerman was sentenced to 24 months’ probation, ordered
to perform 500 hours of community service, pay a $100 special assessment fee and an $11,494 federal
fine); United States v. Simon, No. 02-CR-81039 (E.D. Mich. Nov. 26, 2002) (Simon was charged with
one count of conspiracy, a violation of 18 U.S.C. 371 and one count of smuggling, a violation of 18 U.S.C.
545, after smuggling virgin CFC-12 into the United States from Canada. After pleading guilty to allSummer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 241
smuggled CFC-12 (also known as Freon or Freon-12), into the United States from
Canada. The defendants were charged with smuggling, false statements, and
conspiracy to violate the CAA. They were collectively sentenced to 72 months of
probation, $28,288 in fines, and 1,800 hours of community service for the crimes.
In Table 3, supplemental data gleaned from the cases is provided. In 148
cases, defendants were charged with non-environmental, criminal charges associated
with their environmental crimes. Most of these are Title 18 violations, but others
include state crimes. This finding suggests that approximately 39% of CAA
prosecutions involve more than environmental crimes, but also related criminal
charges. We find that 35% of cases involve a company or organization as the
defendant in the case. In 24 cases we can identify in the case summary that
individuals are injured or killed as the result of a CAA violation, and in one case,
animals are killed. A 2005 case in Delaware against the Motiva Corporation
represents a prosecution for human and animal injuries.34 A storage tank at the
company’s facility leaked 300,000 gallons of spent sulfuric acid on the ground. The
material caught fire, injuring eight workers and was discharged into a nearby stream
further injuring marine life. The company was charged with knowingly violating the
CAA, as well as a CWA violation for the negligent release, and was sentenced to 36
months of probation, ordered to pay a $10 million fine, and a $525 special assessment
fee. Our analysis shows that cumulatively, 709 defendants were prosecuted across
these 377 cases.
Table 3. Supplementary Data for U.S. Clean Air Act Criminal
Prosecutions, 1983-2019._____________________________________________
Case Description Total
Cases with Individuals Killed or Injured 24
Cases with Animals Killed or Injured 1
Defendants Prosecuted 709
Cases with Companies/Organizations as Defendants 133
Cases with Non-Environmental Criminal Charges 148____________
Source: EPA Summary of Criminal Prosecutions Database
Table 4 provides the total penalties assessed in CAA prosecutions analyzed
between 1983-2019. Penalties were categorized by those levied against individuals
and companies, including fines, probation, and incarceration. Additionally,
community service, community corrections, and home confinement is included. In
258 cases, individual defendants were assessed monetary penalties in terms of fines,
charges, Simon was sentenced to 24 months’ probation, ordered to perform 500 hours of community
service, pay a $100 special assessment fee and an $11,494 federal fine).
34. United States v. Motiva Corp., No. 05-CR-021-SLR (D. Del. Mar. 17, 2005) (Motiva was charged
with three counts; (1) negligently; and (2) knowingly violating the CWA; and (3) violating the CAA, after
an above ground storage tank at the Motiva facility leaked approximately 300,000 gallons of spent sulfuric
acid that caught fire resulting in eight injuries and one missing worker; the spent sulfuric acid was
discharged into a nearby stream, killing an estimated 2,500 fish and 100 crabs. Motiva pled guilty to all
three counts and was sentenced to 36 months’ probation, ordered to pay a $525 special assessment fee
and a $10 million federal fine).242 NATURAL RESOURCES JOURNAL Vol. 61
special assessments, and other payments. These monetary penalties totaled over $474
million in the analysis. This number is skewed by a few large penalty cases.
The largest individual fine was a Texas case settled in 2016 against
defendant Philip Joseph Rivkin . The defendant plead guilty to mail fraud and false
statements under the CAA for defrauding the federal government’s biodiesel credit
program. The Energy Independence and Security Act of 2007 allowed companies to
generate credits for producing renewable energy sources. The defendant generated
over 60 million biodiesel credits known as Renewable Identification Numbers
(“RINs”) by claiming to produce significant amounts of biodiesel through three
companies he owned and controlled, but in actuality, he never produced the product.
Rivkin was sentenced to 121 months in prison, three years of supervised release, and
$138 million in penalties, including $87 million in restitution and forfeiture of $51
million in illegal gains from the operation. Other major penalties against individuals
included over $72 million in penalties against Eric Farbent and his co-defendants
involved in a Racketeer Influenced and Corrupt Organizations Act (“RICO”) case
over organized criminal activity in New York related to asbestos abatement and E-
biofuels, which was assessed with its co-defendants over $55 million in restitution
for federal biofuel credit fraud.35
Table 4. Total Penalties Assessed in U.S. Clean Air Act Criminal
Prosecutions, 1983-2019.______________________________________________
Penalty Number of Cases Total ($)
Individual Fines ($) 258 474,983,558
Individual Probation (Months) 259 12,386
Incarceration (Months) 176 7,638
Company Fines ($) 122 3,151,704,478
Company Probation (Months) 86 3,637
Home Confinement (Months) 69 415
Community Corrections (Months) 35 907
Community Service (Hours) 61 17,437__________________
Source: EPA Summary of Criminal Prosecutions Database.
In 259 cases in the dataset, individuals were assessed probation time at
sentencing. The analysis found that they were cumulatively sentenced to 12,386
months of probation over this time period. In 176 cases, defendants were sentenced
to prison, which totaled 7,638 months of incarceration. In 69 cases, individuals were
sentenced to 415 months of home confinement and in 35 cases they were sentenced
35. United States v. Rivkin, No. H 14-603M/H14-250 (S.D. Texas June 15, 2015) (Rivkin was
sentenced to 121 months in prison, three years of supervised release and to pay more than $87 million in
restitution and was ordered to forfeit $51 million for generating and selling fraudulent biodiesel credits in
the federal renewable fuel program); United States v. Farbent, No. 02-CR-51 (N.D. N.Y. Feb. 21, 200)
(Farbent and his co-defendants were all sentenced to incarceration for varying periods of times and to pay
over $72 million in penalties); United States v. E-biofuels, LLC., No. 1:13-CR-0189SEB-TAB (S.D. Ind.
Sept. 17, 2013) (E-biofuels and its co-defendants were sentenced to pay $56,135,811 in restitution after
being charged with wire fraud, making false statements, obstruction of an investigation and money
laundering);18 U.S.C. §§ 1961-1968 (2016).Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 243
to a cumulative total of 907 months of community corrections. Sixty-one cases
resulted in defendants being sentenced to over 17,000 hours of community service.
In 86 cases, companies were assessed probation amounting to a total of
3,687 months. In 122 cases, companies were assessed monetary penalties exceeding
$3 billion. This figure, like the individual defendant total, is skewed by a few large
cases. The 2017 case settled in Michigan against Volkswagen AG for their long-term
emissions rigging scheme resulted in a $2.8 billion fine, which was by far the largest
in the analysis. The 2009 case settled against British Petroleum for the 2005 Texas
City refinery explosion, which killed 15 workers and injured over 170, was settled
for 36 months of probation and a $50 million fine.36 Excluding these two cases
lowers the total penalties against companies to approximately $301 million.
In the final section of the analysis, all of the CAA cases are organized into
a typology that helps to provide a meaningful exploration of the general themes we
uncovered in the data. In Figure 3, the typology of CAA cases is provided, and the
cases are organized around six themes. These include asbestos related crimes, vehicle
emissions fraud, false reporting, renewable fuel credit fraud, negligent operations,
and trade in restricted refrigerants. In some cases the dividing line between false
reporting and negligent operations can be very difficult to find and an argument may
be made in certain examples that a particular case may just as well fit in another
category. The best available case data was used for the investigation and prosecution
and the central crime for which the defendants were being prosecuted in the case to
make the categorization. The themes uncovered are sufficiently clear in the data.
Figure 3. Typology of U.S. Clean Air Act Criminal Prosecutions, 1983-
2019.
Category I Category II
Asbestos Related Crimes Vehicle Emissions Fraud
221 Prosecutions 37 Prosecutions
-Failure to obtain proper accreditation -Illegal importation of non-conforming
for asbestos remediation workers vehicles into the United States
-Selling fraudulent asbestos abatement -Smuggling non-conforming vehicles
certificates into the United States
-Performing asbestos abatement -Illegal importation of engines that are
without proper NESHAP workplace non-conforming into the United States
standards -Mislabeling vehicles as conforming
-Improper demolition of a structure to emissions standards
with asbestos containing materials -Manufacturing and selling vehicles
-Improper removal of asbestos with emissions-testing cheating
containing materials devices
-Improper disposal of asbestos
containing materials
36. United States v. BP Products N. Am., No. 4:07-CR-434(S.D. Tex. Oct. 22, 2007) (BP Products
North America Inc. paid a $50 million criminal fine (the largest ever assessed under the Clean Air Act)
and will serve three years of probation after pleading guilty to a felony violation of the Clean Air Act);
United States v. Volkswagen AG, No. 16-CR-20394 (E.D. Mich. Apr. 21, 2017) (Volkswagen AG was
sentenced to pay a $2.8 billion criminal penalty for Connection with Conspiracy to Cheat U.S. Emissions
Tests).244 NATURAL RESOURCES JOURNAL Vol. 61
-Improper removal of asbestos -Issuing vehicle registrations for
containing materials without a permit vehicles that failed emissions testing
-Failure to provide proper notice of or clean scanning vehicles
removal of asbestos containing
materials
Category III Category IV
False Reporting Renewable Fuel Credit Fraud
28 Prosecutions 8 Prosecutions
-Falsifying lab testing results -Fraudulently claiming tax credits for
-Submitting false records or emissions renewable energy production
reports -Fraudulently reporting the production
-Submitting falsified shipping logs of biodiesel and renewable fuels and
-Failure to report failure of emissions selling/trading the Renewable
control devices Identification Numbers (RINs)
Category V Category VI
Negligent Operations Trade in Restricted Refrigerants
61 Prosecutions 20 Prosecutions
-Chemical or solid/hazardous waste -Illegally importation of R-12, R-22,
spills or other restricted refrigerants
-Illegal release of refrigerants -Smuggling of R-12, R-22, or other
-Illegal release of air emissions restricted refrigerants
without a permit -Illegal distribution and/or selling of
-Illegal release of emissions over R-12, R-22, or other restricted
permitted levels refrigerants
-Tampered with pollution monitoring -Illegal purchase of R-12, R-22, or
controls other restricted refrigerants
-Using unpermitted or malfunctioning -Selling mislabeled canisters of R-12,
equipment or failing to install proper R-22, or other restricted refrigerants
emissions control equipment -Installing mislabeled substitutes for
-Operating without a risk management R-12
plan
-Operating without proper permits
Source: EPA Summary of Criminal Prosecutions Database. Note: In two
cases principal defendants Paul Chavez and Thomas Janiak violated the CAA, but it
is not possible to discern the exact nature of the crime in the information provided in
the database and those cases are not represented in the Figure, which is why total
prosecutions equals 375 and not 377 across all six quadrants.37
37. United States v. Paul Chavez, 088-362 (D. California April 25, 1988) (Defendant plead guilty to
two counts of making false statements for vague violations of the Clean Air Act. Defendant was sentenced
to twenty-four months of probation and ordered to perform 200 hours of community service); United
States v. Thomas Janiak, 93 CR-58(EBB) (D. Connecticut April 14, 1993) (The Defendants were charged
with one count each of violating the CAA (failure to notify) and conspiracy. Defendant Louis Lavitt was
sentenced to sixty months of probation and two hundred and fifty hours of community
service. Defendant Thomas Janiak was sentenced to sixty months of probation and a $4,000Summer 2021 CHARGING AND SENTENCING PATTERNS IN CAA 245
By far the most common type of CAA prosecution in the dataset were those
dealing with asbestos related crimes. In approximately 50% of cases, defendants
were primarily charged for asbestos related crimes under the CAA. We list these in
Category I in the upper left-hand side of Figure 3. This rather broad theme uncovered
a variety of criminal actions we note in the first quadrant that help to explain how
prosecutors used the CAA to charge environmental criminals for asbestos crimes.
The first sub-category revolved around failing to provide proper training to workers,
proper worker certification, or follow National Emissions Standards for Hazardous
Air Pollutants (“NESHAP”) workplace standards when modifying or demolishing
structures containing Asbestos-Containing Material (“ACM”).
A case settled in Idaho in 1996 against Patricia Persons and Mountain States
Insulation is illustrative of this sub-category.38 Mountain States was an asbestos
abatement contractor that generated revenue from government contracts related to
regulations under The Asbestos Hazard Emergency Response Act (“AHERA”),
which requires schools and state and local agencies to inspect their facilities for
ACM, develop an asbestos management plan, and remove the material if it is
disturbed or renovations take place. This is a common revenue stream for the
asbestos abatement industry. Persons did not obtain proper certification for
employees conducting the abatement, gave false statements, and then received six
months incarceration, 36 months of probation and a fine of $6,000. Mountain States
received 36 months of probation and a $19,000 fine.39 In another case example,
principal defendant Anthony Priore and eleven co-defendants were charged initially
in 1999 in New York and sentencing was completed in 2004 for a complex case
focused on the issuance of fraudulent asbestos training certificates.40
Other sub-categories centered around failure to provide proper notice of
asbestos removal or failure to obtain proper permits. Joseph Michael Kehrer was
sentenced in Illinois in 2018 for failure to provide proper notice. He was required by
law to notify authorities if he removed more than 160 feet of ACM. As the owner of
the former Okawville Elementary School building in Okawville, Illinois, he
obstructed the investigation by lying about the previous removal and disposal of
asbestos on the property.41 Principal defendant, Dennis Marchuck, was indicted
fine. Defendant David Liebman was sentenced to ten months incarceration, twelve months of probation
and fined $3,000. Defendant William Janiak was sentenced to six months home detention, two hundred
and fifty hours of community service and sixty months of probation).
38. United States v. Persons, No. 4:96CR00005-01. (D. Idaho Nov. 1, 1996) (Persons failed to obtain
accreditation for employees conducting asbestos removal in school buildings, then gave false statements
about same to the government); United States v. Priore, No. 5:99-CR-295 (N.D. N.Y. May 20, 1999)
(Priore and co-defendants were engaged in efforts to fraudulently issue asbestos training certificates to
individuals in the Albany, New York area, who did not complete the required training courses).
39. See id.
40. U.S. ENVTL. PROTECTION AGENCY, MORE THAN A DOZEN DEFENDANTS PLEAD GUILTY TO
VIOLATION ASBESTOS RULES; ONE INDICTED FOR NUMEROUS ALLEGATIONS OF WRONG-DOING (Feb.
24, 2000), https://archive.epa.gov/epapages/newsroom_archive/newsreleases/7ff3d8aaaf0a2768852
57173006bd933.html.
41. United States v. Kehrer, No. 18CR30030SMY (S.D. Ill. Aug. 16, 2018) (Kehrer was sentenced
to five months imprisonment and a criminal fine of $50,00. Upon release, Kehrer will placed on supervised
release for one year); United States v. Marchuk, No. 91-000669 (E.D. Pa. Dec. 15, 1991) (Marchuk was
sentenced to two years imprisonment and a fine of $25,000. Marchuk was also sentenced to three years
supervised probation).246 NATURAL RESOURCES JOURNAL Vol. 61
sentenced along with three co-defendants in Pennsylvania in 1994 for the demolition
and removal of friable asbestos (i.e. material that can be easily crumbled or
pulverized by hand pressure) without a permit.42
The most common sub-category of asbestos related prosecutions involved
improper removal or disposal of ACM or demolition of a building containing ACM
(i.e. typically in ceilings, floor tiles, building insulation, and pipe insulation).
Cuyahoga Wrecking Corporation was prosecuted for improper demolition and
conspiracy to defraud the EPA. RAL Properties was sentenced in Ohio in 1993 for
illegal removal and disposal of ACM.43 The owner of the company Michael Laska
and his assistant, co-defendant Steve Howell, were also charged and sentenced for
the CAA violations, conspiracy, and failure to notify under CERCLA.44 Laska was
sentenced to seven months incarceration and seven months of home detention, a
special assessment fee of $100 and fine of $3,000. Steve Howell was sentenced to
24 months of probation and ordered to pay a special assessment fee of $50.45
Category II characterizes 37 prosecutions or approximately 10% of the data
as vehicle emissions fraud. Prosecutions that involved illegal activity to subvert
emissions regulations for vehicles under the CAA were selected. The first sub-
category of prosecutions generally involved the illegal import of non-conforming
vehicles or non-conforming engines, mislabeling vehicles as conforming, or
smuggling non-conforming vehicles in the United States. An example case was
Dennis Alston sentenced in Texas in 1986 for importing non-conforming cars from
Germany and deceiving the EPA into granting the importation under a five-year
exemption clause at the time.46 Hyundai Construction Equipment Americas was
sentenced to a $1,950,000 fine in 2018 for importing non-conforming construction
equipment into the United States in violation of the CAA. During a phase-in period
for new emissions standards, the company was allowed to import a limited number
of non-conforming engines but under-reported the actual number of non-conforming
engines and its employees conspired to hide this fact from the EPA.47
The next sub-category of vehicle emissions fraud relates to “clean
scanning” operations that falsified vehicle emissions reports to circumvent emissions
testing in non-attainment areas (i.e. those areas having air quality worse than levels
defined for criteria pollutants in the NAAQS) or issued false emissions certificates
42. Lee Linder, Four Charged with Environmental Violations in Delaware County Development,
ASSOCIATED PRESS (Dec. 12, 1991), https://apnews.com/article/3538f42230f557643ae23466adc92445.
43. United States v. Cuyahoga Wrecking Corp., No. 4-89-CR-0281 (N.D. Ohio Sept. 21, 1989) (The
Corporation plead guilty and was ordered to pay a fine of $1,000,000 with $800,000 held in abeyance.
Co-Defendants were sentenced to probation and fines ranging from $3,000-$5,000).
44. United Stated v. RAL Prop., No. 91 (s)-V-3-1 (N.D. Ohio Sept. 30, 1992) (Owner and co-
defendant were each indicted on three counts of violating CERCLA, the CAA and conspiracy).
45. Id; 18 U.S.C. §§ 1961-1968.
46. Alston, supra note 27.
47. United States v. Hyundai Constr. Equip. Americas, No. 1:18-CR-00379 (N.D. Ga. 2019)
(Hyundai Constr. Equip. Americas was notified that they were importing engines that violated emissions
standards under the Clean Air Act. Hyundai disregarded the notice and intentionally misrepresented the
number of noncompliant engines it had imported and was fined $1.95 million dollars for conspiring to
defraud the US and to violate the Clean Air Act).You can also read
